FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS Aundria D. Foster, Judge. Among the several issues we address in this appeal is

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1 Present: All the Justices JOHN CRANE, INC. v. Record No OPINION BY JUSTICE DONALD W. LEMONS March 2, 2012 MARGARET DIANE HARDICK, EXECUTOR OF THE ESTATE OF ROBERT EUGENE HARDICK, DECEASED, ET AL. FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS Aundria D. Foster, Judge Among the several issues we address in this appeal is whether the Circuit Court of the City of Newport News ("trial court") erred when it permitted the jury to award nonpecuniary damages in a wrongful death action of a Navy sailor for asbestos exposure that occurred both in territorial waters and on the high seas. I. Facts and Proceedings Below Robert Eugene Hardick ("Hardick") filed suit under general maritime law against John Crane, Inc. ("JCI") and 22 other defendants seeking $20 million in compensatory damages and $5 million in punitive damages. Hardick's complaint alleged that he was exposed to asbestos dust, fibers, and particles contained in products manufactured by JCI, and he contracted mesothelioma as a result of such exposure. Hardick died prior to trial, and his action was revived as a wrongful death action by his wife, Margaret D. Hardick ("Mrs. Hardick"), in her capacity as executor of his estate. Mrs. Hardick settled or

2 nonsuited the claims against all defendants except JCI and proceeded against JCI, the sole remaining defendant. Prior to trial, JCI filed a motion in limine to exclude evidence of nonpecuniary damages. JCI argued that "[Mrs. Hardick's] own theory of liability depend[ed] upon [Hardick having] significant exposure to asbestos while onboard Navy ships underway on the high seas and in foreign ports," and Mrs. Hardick is only entitled to recover damages available under the Death on the High Seas Act ("DOHSA"), 46 U.S.C , et seq. (2006 & Supp. III 2010). JCI further argued that because DOHSA "precludes recovery of nonpecuniary damages such as pain and suffering, loss of society/consortium, or punitive damages,... and in furtherance of the Constitution's requirement of uniformity in application of federal maritime law, any recovery by [Mrs. Hardick] under the general maritime law is likewise limited to pecuniary damages." Additionally, JCI argued that Hardick was a seaman as defined by the United States Supreme Court ("Supreme Court") in McDermott Int'l, Inc. v. Wilander, 498 U.S. 337, (1991). In response, Mrs. Hardick claimed that she was the master of her pleadings, and could pursue recovery either under DOHSA for injuries sustained on the high seas or under general maritime law for injuries sustained in territorial waters. Mrs. Hardick elected to pursue recovery under general maritime 2

3 law for Hardick's asbestos exposure. Moreover, Mrs. Hardick argued that Hardick was not a seaman, but rather a "nonseafarer" as defined by the Supreme Court in Yamaha Motor Corp. v. Calhoun, 516 U.S. 199, 205 n.2 (1996). The trial court denied JCI's motion to exclude evidence of nonpecuniary damages, stating that its ruling was based on "the reasons stated by [Mrs. Hardick]." JCI also filed a motion in limine to exclude Mrs. Hardick's evidence of the removal of asbestos-containing gaskets, arguing that Hardick's deposition testimony 1 and the deposition testimony of Hardick's former co-workers failed to establish that Hardick ever removed gaskets manufactured by JCI. At a pre-trial hearing, the parties informed the trial court that various motions had been resolved, including the motion to exclude evidence of asbestos exposure resulting from the removal of gaskets. Mrs. Hardick represented that JCI's motion relating to the removal of asbestos-containing gaskets had been "dropped." JCI agreed and withdrew its motion, declaring "it's a jury issue." However, JCI retained the right to move to strike such evidence at the close of Mrs. Hardick's case if the evidence was insufficient to establish that Hardick removed asbestos-containing gaskets manufactured by JCI. 1 Because Hardick died prior to trial, his deposition testimony was presented by video. 3

4 Prior to trial, Mrs. Hardick filed a motion in limine requesting that the trial court prohibit JCI's "Navy expert," Wesley Hewitt ("Hewitt"), from "giving speculative and misleading testimony" regarding the types and amounts of insulation to which Hardick may have been exposed. The trial court granted Mrs. Hardick's motion regarding Hewitt; however, the trial court stated that "[t]he parties agree that Hewitt may testify on the basis of documents that he has reviewed and produced about other products to which Mr. Hardick may have been exposed provided that [JCI] ties such exposure directly to Mr. Hardick." Mrs. Hardick presented the following evidence at trial. Hardick served in the United States Navy from 1957 to 1976 on several different vessels, both in domestic ports and in foreign ports. Hardick testified that one vessel he serviced was seldom in port; and, consequently, his duties were often performed at sea. From 1958 to 1962, Hardick worked as a shipfitter and reported for duty upon the USS Newport News, the USS Tutuila, and the USS Wrangell. As a shipfitter, Hardick repaired and replaced valves and gaskets. The valves and gaskets Hardick repaired contained asbestos. Hardick testified that during his time on board the USS Newport News, he recalled one journey to Guantanamo Bay, Cuba, 4

5 during which he performed his routine duties as a shipfitter. While Hardick was on board the USS Wrangell, the vessel sailed on a 13-month voyage to the Mediterranean and from the Mediterranean, to Cuba. Hardick performed his duties during these voyages while on the high seas. James Croom, Jr. ("Croom"), Hardick's supervisor on the USS Tutuila, testified that the USS Tutuila was stationed in Norfolk, Virginia, and the vessel "usually stayed tied up at Pier 2." Because the USS Tutuila was docked in Norfolk, Hardick's performed his duties as a shipfitter in territorial waters. After attending school to become a machinery repairman, Hardick worked as a machine repairman aboard the USS Everglades, the USS Bordelon, and the USS Detroit from 1963 to As a machinery repairman, Hardick's tasks primarily involved repairing valves, but he still occasionally worked on the piping systems aboard the vessels. Hardick testified that he recalled traveling to the Mediterranean once while on board the USS Everglades. However, the USS Everglades was based and primarily stayed in Charleston, South Carolina during Hardick's service on the vessel. In particular, Hardick testified that "[w]e stayed mostly in Charleston tied up working on destroyers." 5

6 During his tenure on the USS Bordelon, Hardick repaired an entire diesel generator while the vessel was at sea. Hardick testified that he was next assigned to the USS Detroit, which was located at the naval shipyard in Bremerton, Washington, because the vessel was in the process of being built. After the USS Detroit was commissioned, Hardick continued to service the vessel as a machinery repairman. From 1971 to 1976, Hardick served as the master of arms aboard the USS Yellowstone and later as a race-relations specialist aboard the USS Canopus. In these capacities, Hardick continued to work around people using the same products that he worked with as a shipfitter and a machinery repairman, namely, valves and gaskets. Specifically, Hardick testified that he was exposed to asbestos dust on board the USS Canopus when the vessel was underway to Guantanamo Bay, Cuba. Hardick testified that he worked with gaskets manufactured by JCI and Garlock, and could not tell the difference between JCI packing materials and Garlock packing materials that were not in the original box or package because "[t]hey looked identical." Hardick's co-worker, Frank Hoople, testified that he was unable to identify who manufactured the gasket materials that he removed. Moreover, Croom testified that Hardick regularly used both JCI and Garlock gaskets and packing materials while working on the USS Tutuila. When asked whether 6

7 Hardick was exposed to gaskets manufactured by companies other than JCI and Garlock, Croom testified "I'm sure there w[ere] a lot of others," but he could not remember the names of specific manufacturers. In February 2007, Hardick was diagnosed with mesothelioma, a fatal form of cancer, and he died in March Mrs. Hardick's expert testified that Hardick's mesothelioma was the result of his "cumulative asbestos exposures" during his approximately twenty-year service in the Navy and that mesothelioma is an "indivisible disease." At the close of Mrs. Hardick's case, JCI renewed its objection to Mrs. Hardick's claim for nonpecuniary damages. The trial court adhered to its pre-trial ruling. JCI also moved to strike the portions of Mrs. Hardick's evidence that Hardick's asbestos exposure resulted from gasket removal because no direct evidence was presented at trial that Hardick ever removed gaskets manufactured by JCI. The trial court denied the motion, concluding that there was sufficient circumstantial evidence that Hardick removed gaskets manufactured by JCI, and the jury should decide the issue. JCI subsequently attempted to call Hewitt as a witness and represented that he would testify on various issues related to the United States Navy. However, Mrs. Hardick objected to Hewitt's testimony based, in part, upon JCI's stipulation that 7

8 Hewitt would "not opine about Hardick's exposure to asbestos, a subject that more appropriately falls within other expert[s'] fields." (Emphasis in original.) Also, Mrs. Hardick argued that Hewitt admitted at his pre-trial deposition testimony that he could not testify about any specific repairs or job on any of Hardick's ships, and that he had no personal knowledge concerning any specific environment in which Hardick worked. Granting Mrs. Hardick's motion, the trial court ruled that because JCI "can't connect [any of Hewitt's proposed testimony] up directly to Mr. Hardick, then it's not appropriate. It's irrelevant." Following the presentation of all the evidence, JCI renewed its motions to strike Mrs. Hardick's evidence of nonpecuniary damages and gasket removal. The trial court denied JCI's motions, reaffirming its previous rulings. Although JCI was the sole defendant at trial, JCI presented evidence that Hardick was exposed to asbestos contained in valves that had been manufactured by Crane Company 2 and gaskets that had been manufactured by Garlock. Crane Company and Garlock are two of the manufacturers that settled 2 Crane Company is a Virginia corporation and is the "parent and/or successor in interest to Crane Environmental, Inc., Crane Valve Group and Pacific Valves, Inc."; whereas, JCI is a Delaware corporation. The record does not reveal the connection, if any, between Crane Company and JCI. 8

9 with Mrs. Hardick prior to trial. Mrs. Hardick and JCI agreed to a jury instruction that permitted the jury to apportion damages among JCI, Garlock, and Crane Company, which was given by the trial court. The jury returned a verdict for Mrs. Hardick in the amount of $5,977,482, apportioning 50 percent of the fault to JCI and 50 percent to Garlock. The verdict included $2 million for Hardick's pain and suffering; $1.15 million for Mrs. Hardick's loss of society; $2.5 million for Mrs. Hardick's reasonably expected loss of Hardick's income and loss of Hardick's services; $319,650 for Hardick's medical expenses; and $7,832 for Hardick's funeral expenses. 3 Thereafter, JCI filed its motion for new trial, renewing its objection to: (1) the trial court's admission of Mrs. Hardick's evidence of gasket removal and (2) the trial court's "exclusion of circumstantial evidence proffered by JCI regarding Hardick's potential exposure to various other types of brands of gasket and packing material." JCI also filed a motion for partial judgment or, alternatively, for remittitur, arguing that the nonpecuniary portion of the verdict should be vacated. The trial court denied both motions and entered final 3 The awards for loss of income and loss of services and for medical and funeral expenses are not the subject of an assignment of error and are, therefore, not at issue in this appeal. 9

10 judgment requiring JCI to pay 50 percent of the damages awarded by the jury to Mrs. Hardick, a sum of $2,988,741. JCI timely filed its petition for appeal, and we granted JCI's appeal on the following assignments of error: 1. The trial court committed reversible error by allowing the jury to award nonpecuniary damages for the wrongful death of a Navy sailor, who alleged an "indivisible" injury from exposure to asbestos that occurred, in part, on the high seas. 2. The trial court committed reversible error in allowing plaintiff to introduce evidence of asbestos exposure from gasket removal, where plaintiff did not prove that any gasket removed was more likely than not a gasket supplied by JCI. The trial court compounded that error by precluding JCI from introducing circumstantial evidence of Hardick's exposures to asbestos-containing products supplied by other entities. II. Analysis A. Standard of Review The first assignment of error presents "a mixed question of law and fact," which we review de novo. Westgate at Williamsburg Condo. Ass'n v. Philip Richardson Co., 270 Va. 566, 574, 621 S.E.2d 114, 118 (2005). The second assignment of error involves the admissibility of evidence. It is well-settled that we "review a trial court's decision to exclude evidence for an abuse of discretion, and we will not disturb a trial court's evidentiary ruling absent an abuse of discretion." Kimble v. Carey, 279 Va. 652, 662, 691 S.E.2d 790, 796 (2010). Furthermore, "[a] 10

11 great deal must necessarily be left to the discretion of the [trial court], in determining whether evidence is relevant to the issue or not. Evidence is relevant if it has any logical tendency to prove an issue in a case." Avent v. Commonwealth, 279 Va. 175, , 688 S.E.2d 244, 257 (2010) (quoting John Crane, Inc. v. Jones, 274 Va. 581, 590, 650 S.E.2d 851, 855 (2007)). B. Nonpecuniary Damages Prior to trial, JCI filed a motion in limine, requesting that the trial court exclude evidence of nonpecuniary damages and argued, among other things, that Hardick was a "seaman" as defined by the Supreme Court in McDermott Int'l, Inc. v. Wilander, 498 U.S. at 355 (defining "seaman," in part, as one who "contribute[s] to the function of the vessel"). JCI further argued that, as a seaman, Hardick was precluded from recovering nonpecuniary damages. Relying upon Miles v. Apex Marine Corp., 498 U.S. 19, (1990), JCI maintained that "there is no recovery for loss of society in a general maritime action for the wrongful death of a... seaman[,]" because damages recoverable under a general maritime action for the wrongful death of a seaman are limited to those that are pecuniary in nature. To the contrary, Mrs. Hardick argued that Hardick was not a "seaman"; rather, he was a "nonseafarer" pursuant to Yamaha, 11

12 in which the Supreme Court defined "nonseafarer" as "persons who are neither seamen covered by the Jones Act... nor longshore workers covered by the Longshore and Harbor Workers' Compensation Act [("LHWCA")]." 516 U.S. at 205 n.2. Mrs. Hardick further argued that because Hardick was a nonseafarer pursuant to Yamaha, 519 U.S. at 205, 216, and because she was the master of her pleadings and her complaint was based on a general maritime wrongful death cause of action due to Hardick's asbestos exposure in territorial waters, she was not precluded from recovering nonpecuniary damages. The trial court denied JCI's motion, stating that it was "persuaded by [Mrs. Hardick's] cases and by [her] argument and by [her] analysis." The trial court further explained that, "for the reasons stated by [Mrs. Hardick] and the authority that [she has] relied on, I'm going to overrule the motion and allow evidence for nonpecuniary damages." In Wilander, the Supreme Court noted that the term "seaman" is "a maritime term of art" and that "this Court continue[s] to construe 'seaman' broadly." U.S. at 342, 4 Mrs. Hardick argues that "[u]nder Wilander, [498 U.S. at 354,] to qualify as a seaman a worker must prove that he is a 'master or member of a crew' of a merchant 'vessel.'[] Navy sailors like Mr. Hardick do not qualify for many reasons, not the least of which is that the vessels they crew are not merchant vessels." (Emphasis in original.) However, Wilander does not require that a seaman be a master or member of a crew of a "merchant" vessel. 498 U.S. at The term 12

13 346. Significantly, the Supreme Court, in defining the term "seaman," explained in Wilander that, the requirement that an employee's duties must 'contribute to the function of the vessel or to the accomplishment of its mission' captures well an important requirement of seaman status. It is not necessary that a seaman aid in navigation or contribute to the transportation of the vessel, but a seaman must be doing the ship's work. Id. at 355 (quoting Offshore Co. v. Robison, 266 F.2d 769, 779 (5th Cir. 1959)). 5 The Supreme Court further explained that, "[b]y the middle of the 19th century, the leading admiralty treatise noted the wide variety of those eligible for seamen's benefits[, such as]: 'Masters, mates, sailors, surveyors, carpenters, coopers, stewards, cooks, cabin boys, kitchen boys, engineers, pilots, firemen, deck hands, [and] waiters.' " Id. at 344 (quoting Erastus C. Benedict, American Admiralty 278, at 158 (1850)). Mrs. Hardick again argues on appeal that Hardick was not a seaman; rather, Hardick was a "nonseafarer" pursuant to Yamaha, because he was "neither [a] seam[a]n covered by the Jones Act "merchant" does not appear in Wilander. Id. 5 The Supreme Court subsequently expanded upon the definition of a seaman, stating that "a seaman must have a connection to a vessel in navigation (or to an identifiable group of such vessels) that is substantial in terms of both its duration and its nature." Chandris, Inc. v. Latsis, 515 U.S. 347, 368 (1995). 13

14 ... nor [a] longshore worker[] covered by the [LHWCA]." 516 U.S. at 205 n.2. Yamaha involved the death of a 12-year-old girl while riding a jet ski in the waters fronting a hotel in Puerto Rico. The Supreme Court had no trouble observing that this 12-yearold girl was "not a seaman, longshore worker, or person otherwise engaged in a maritime trade." Id. at 202. The Court held that "damages available for the jet ski death... are properly governed by state law." Id. at 216. Hardick's status is hardly comparable to that of a 12-year-old girl riding a jet ski. We look elsewhere for definition of his status. Here, the evidence overwhelmingly demonstrated that: (1) Hardick was a shipfitter and a machinery repairman who "contribute[d] to the function of the vessel[s] or to the accomplishment of [their] mission[s]," Wilander, 498 U.S. at 355; and (2) had "a connection to [an identifiable group of] vessel[s] in navigation... that [was] substantial in terms of both its duration and its nature." Chandris, 515 U.S. at Therefore, we hold that Hardick was a seaman as defined by the Supreme Court in Wilander, 498 U.S. at 355, and Chandris, 515 U.S. at JCI argues in its first assignment of error that the trial court erred "by allowing the jury to award nonpecuniary damages for the wrongful death of a Navy sailor, who alleged an 14

15 'indivisible' injury from exposure to asbestos that occurred, in part, on the high seas." We agree. "[D]amages for the intangible, noneconomic aspects of mental and emotional injury are of a different nature. They are inherently nonpecuniary, unliquidated and not readily subject to precise calculation." Greater Westchester Homeowners Ass'n v. City of Los Angeles, 603 P.2d 1329, 1338 (Cal. 1979). The Supreme Court has held that damages compensating a plaintiff for the decedent's pre-death pain and suffering are nonpecuniary. Dooley v. Korean Air Lines Co., 524 U.S. 116, 118, 120 (1998) (stating that DOHSA "allows certain relatives of the decedent to sue for their pecuniary losses [and, as a result,] does not authorize recovery for the decedent's pre-death pain and suffering") (emphasis added). Additionally, the Supreme Court has held that loss of society damages are nonpecuniary. Zicherman v. Korean Air Lines Co., 516 U.S. 217, 230 (1996) (stating that, "DOHSA provides that the recovery... 'shall be a fair and just compensation for the pecuniary loss sustained by the persons for whose benefit the suit is brought.' Thus, petitioners cannot recover lossof-society damages under DOHSA.") (internal citation omitted) (emphasis added). The $2 million award for Hardick's pain and suffering and the $1.15 million award for Mrs. Hardick's loss of society are nonpecuniary damages. 15

16 Pecuniary damages are those that "can be measured by some standard." Michigan Cent. R.R. Co. v. Vreeland, 227 U.S. 59, 71 (1913). In particular, the Supreme Court has stated that damages for loss of services are a pecuniary loss. Id. Mrs. Hardick's reasonably expected loss of Hardick's income, his medical expenses, and his funeral expenses "can be measured by some standard" and, as a result, are pecuniary in nature. See Miles, 498 U.S. at 30 (observing that pecuniary damages include damages for "losses of support, services, and funeral expenses"). Accordingly, the $2.5 million award for Mrs. Hardick's reasonably expected loss of Hardick's income and loss of Hardick's services, the $319,650 award for Hardick's medical expenses, and the $7,832 award for Hardick's funeral expenses are pecuniary damages. In this case, the only awards of damages that are nonpecuniary and at issue in this appeal are the $2 million award for Hardick's pain and suffering and the $1.15 million award for Mrs. Hardick's loss of society. Mrs. Hardick goes to great lengths to explain the history of the common law wrongful death cause of action and argues that a wrongful death cause of action exists under general maritime law apart from any statutory enactment and that such a cause of action existed prior to the enactment of DOHSA and the Jones Act. Specifically, Mrs. Hardick argues that the Supreme 16

17 Court "issued a flawed opinion" when it decided The Harrisburg, 119 U.S. 199 (1886). In 1877, the steamer "Harrisburg" collided with a schooner off the coast of Massachusetts in territorial waters. Id. at 199. The schooner sank, and its first officer drowned. Id. His widow subsequently brought a wrongful death action against the "Harrisburg," and the Supreme Court held, on appeal, "that admiralty afforded no remedy for wrongful death in the absence of an applicable state or federal statute." Mobil Oil Corp. v. Higginbotham, 436 U.S. 618, 620 (1978) (citing The Harrisburg, 119 U.S. at ). "Thereafter, suits arising out of maritime fatalities were founded by necessity on state wrongful-death statutes." Id. Congress subsequently enacted DOHSA in 1920, 6 creating a remedy in admiralty for wrongful deaths "[w]hen the death of an individual is caused by wrongful act, neglect, or default occurring on the high seas beyond 3 nautical miles from the shore of the United States." 46 U.S.C DOHSA provides that "[t]he recovery in an action under this chapter... shall be a fair compensation for the pecuniary loss sustained by the individuals for whose benefit the action is brought." 46 U.S.C Additionally, Congress passed 6 See former 46 U.S.C. Appx. 761 et seq. (2000) (superseded 2006). 17

18 the Jones Act that same year, 7 providing that "[a] seaman injured in the course of employment or, if the seaman dies from the injury, the personal representative of the seaman may elect to bring a civil action at law... against the employer." 46 U.S.C For the next 50 years, "deaths on the high seas gave rise to federal suits under DOHSA, while those in territorial waters were largely governed by state wrongful-death statutes." Higginbotham, 436 U.S. at 621. As the Supreme Court has stated, "DOHSA brought a measure of uniformity and predictability to the law on the high seas, but in territorial waters, where The Harrisburg made state law the only source of a wrongful-death remedy, the continuing impact of that decision produced uncertainty and incongruity." Id. In response to this uncertainty, the Supreme Court overruled The Harrisburg in Moragne v. States Marine Lines, Inc., 398 U.S. 375, 409 (1970). In Moragne, the Supreme Court "created a general maritime wrongful death cause of action," thereby effectuating "the constitutionally based principle that federal admiralty law should be 'a system of law coextensive with, and operating uniformly in, the whole 7 See former 46 U.S.C. Appx. 688 (2000) (superseded 2006). 18

19 country.' " Miles, 498 U.S. at 27; Moragne, 398 U.S. at 402, 409 (quoting The Lottawanna, 88 U.S. 558, 575 (1875)). Mrs. Hardick argues that when the Supreme Court overruled The Harrisburg, "it returned maritime wrongful death law to its pre-harrisburg state. And that pre-harrisburg state... recognized non-pecuniary damages at least half a century before Congress... enacted DOHSA and the Jones Act." However, the Supreme Court based its decision to overrule The Harrisburg, in large part, upon its conclusions that the Jones Act "was intended to achieve uniformity in the exercise of admiralty jurisdiction," and DOHSA "was not intended to preclude the availability of a remedy for wrongful death under general maritime law in situations not covered by the Act." Moragne, 398 U.S. at (internal quotation marks omitted). Moreover, while the Supreme Court "created a general maritime wrongful death cause of action" in Moragne, "Moragne did not set forth the scope of the damages recoverable under the maritime wrongful death action." Miles, 498 U.S. at 27, 30. Four years after its decision in Moragne, the Supreme Court, in Sea-Land Servs. v. Gaudet, 414 U.S. 573 (1974), addressed "whether the widow of a longshoreman may maintain such an action for the wrongful death of her husband alleged to have resulted from injuries suffered by him while aboard a vessel in [territorial] waters after the decedent recovered 19

20 damages in his lifetime for his injuries." 414 U.S. at 574. The accident in Gaudet, like that in Moragne, took place in territorial waters, where DOHSA did not apply. Id. See Moragne, 398 U.S. at 376. However, in Gaudet, the Supreme Court "chose not to adopt DOHSA's pecuniary-loss standard; instead it followed the 'clear majority of States' and 'the humanitarian policy of the maritime law,' both of which favored recovery for loss of society." Higginbotham, 436 U.S. at 622 (quoting Gaudet, 414 U.S. at ). Therefore, the Supreme Court "made a policy determination in Gaudet which differed from the choice made by Congress when it enacted [DOHSA]." 8 Id. Following Gaudet, the Supreme Court, in Higginbotham, addressed the issue "whether, in addition to the damages authorized by federal statute, a decedent's survivors may also recover damages under general maritime law." 436 U.S. at 618. In Higginbotham, a helicopter crashed and the decedents died on the high seas. Id. at Significantly, the Supreme Court noted that, 8 Mrs. Hardick relies heavily upon Gaudet to support her argument that she may recover nonpecuniary damages under the facts of this case. However, as the Supreme Court subsequently stated in Miles, "[t]he holding of Gaudet applies only in territorial waters, and it applies only to longshoremen." Miles, 498 U.S. at 31. Moreover, "the 1972 amendments to LHWCA [33 U.S.C. 905(b)] have rendered Gaudet inapplicable on its facts." Id. at 31 n.1. Consequently, Gaudet is irrelevant to the resolution of this case. 20

21 [t]he Gaudet opinion was broadly written. It did not state that the place where death occurred had an influence on its analysis. Gaudet may be read, as it has been, to replace [DOHSA] entirely.... Its holding, however, applies only to [territorial] waters. We therefore must now decide which measure of damages to apply in a death action arising on the high seas -- the rule chosen by Congress [in DOHSA] in 1920 or the rule chosen by this Court in Gaudet. Id. at In considering whether Gaudet impacted the measure of damages for wrongful death actions arising on the high seas, the Supreme Court in Higginbotham reiterated the importance of uniformity in maritime law, stating that "[a]s Moragne itself implied, DOHSA should be the courts' primary guide as they refine the nonstatutory death remedy, both because of the interest in uniformity and because Congress' considered judgment has great force in its own right." Id. at 624. Moreover, the Supreme Court explained that, "[i]n Moragne, the Court recognized a wrongful-death remedy that supplements federal statutory remedies. But that holding depended on our conclusion that Congress withheld a statutory remedy in [territorial] waters" in DOHSA because such claims were then controlled by state wrongful death statutes. Id. at 625 (citing Moragne, 398 U.S. at ) (emphasis added). The Supreme Court further noted that "[t]here is a basic difference 21

22 between filling a gap left by Congress' silence and rewriting rules that Congress has affirmatively and specifically enacted" and, consequently, "[i]n an area covered by the statute, it would be no more appropriate to prescribe a different measure of damages than to prescribe a different statute of limitations or a different class of beneficiaries." Id. Accordingly, in an effort to promote uniformity in the availability of damages in maritime wrongful death actions, the Supreme Court held in Higginbotham that when the decedent's death occurs on the high seas, a decedent's survivors may not supplement the damages available under DOSHA--damages for pecuniary loss--with additional damages under general maritime law for nonpecuniary losses. Id. at While interesting and informative, Mrs. Hardick's reliance upon the Supreme Court's admiralty jurisprudence for the proposition that a wrongful death cause of action has existed under general maritime law apart from, and prior to, any statutory enactment offers little to the resolution of this case. Mrs. Hardick makes much of the distinction between a wrongful death cause of action under DOHSA and a general maritime law wrongful death cause of action. However, for the purpose of determining what damages are available, it is irrelevant in this case whether Mrs. Hardick's claim was brought under DOHSA or under general maritime law. The Supreme 22